UNITED STATES of America, Appellee, v. Arthur Lajuane TAYLOR, Appellant.
No. 88-1408.
United States Court of Appeals, Eighth Circuit.
Decided Jan. 4, 1989.
Rehearing and Rehearing En Banc Denied March 7, 1989.
864 F.2d 625
Submitted Sept. 19, 1988.
We agree with the district court‘s conclusion that plaintiff‘s factual pleading as to negligently inflicted emotional distress does not state a cause of action under Nebraska law. See James v. Lieb, 221 Neb. 47, 375 N.W.2d 109 (1985). The judgment is affirmed as to the dismissal of Count III; judgment is reversed and remanded as to Counts I and II. Costs assessed against plaintiff.4
Bruce D. Livingston, St. Louis, Mo., for appellant.
David M. Rosen, St. Louis, Mo., for appellee.
Before McMILLIAN, Circuit Judge, BRIGHT, Senior Circuit Judge, and FAGG, Circuit Judge.
Arthur Lajuane Taylor pleaded guilty in the District Court1 for the Eastern District of Missouri to one count of possessiоn of a firearm by a convicted felon in violation of
Taylor appeals only from the imposition of the enhanced sentence.2 Because the imposition of the sentence arose out of a guilty plea pursuant to a plea agreement, there are no disputed factual issues. The issue on appeal is one of law only.
We have recently considered the issue of whether burglary in the second degree is a “violent felony” in United States v. Portwood, 857 F.2d 1221 (8th Cir.1988) and United States v. Black, 857 F.2d 1221 (8th Cir.1988) (consolidated for appeal, hereinafter Portwood). The reasoning of Portwood applies with equal weight to this case.
The sentence enhancement provisions of
(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Burglary in the second degree is defined in the Missouri Revised Statutes as:
knowingly enter[ing] unlawfully or knowingly remain[ing] unlawfully in a building or inhabitable structure for the purpose of committing a crime therein.
As a felony, burglary in the second degree is punishable by imprisonment for a term of more than one year.
Taylor argues, however, that burglary in the second degree is not a “violent felony . . . that . . . involves conduct that presents a serious potential risk of physical injury to another.”
In response to an argument identical to the one posed by Taylor, we held in Portwood that “burglary” in the sentence enhancement statute means “burglary” however a state chooses to define it. We stаted that:
Congress could quite reasonably conclude that no matter what the felon‘s intent upon breaking in, the property owner may return, a neighbor may investigate, or a law enforcement official may respond. All of these scenarios present a grave threat of harm to persons. A person with . . . prior convictions for burglary, regardless of the details of each burglary, presents the type of potential threat to society that Congress sought to control by the enactment of § 924(e).
857 F.2d at 1224. Based on the reasoning of Portwood, we hold that the district court did not err in considering Taylor‘s prior convictions for Missouri burglary in the second degree as predicate offenses which, in conjunction with his other prior convictions, subject him to an enhanced sentence under
Accordingly, thе judgment of the district court is affirmed.
BRIGHT, Senior Circuit Judge, dissenting.
I dissent.
The majority follows the holding of United States v. Portwood, 857 F.2d 1221 (8th Cir.1988). In Portwood, the court held that Missouri‘s second degree burglary statute satisfies the definition of burglary as used by Congress in
Section 924(e) does not define “burglary.” As a mаtter of statutory construction, “[w]here Congress uses terms that have accumulated settled meaning under either equity or the common law, a court must infer, unless the statute otherwise dictates, that Congress means to incorporate the established meaning of these terms.” NLRB v. Amax Coal Co., 453 U.S. 322, 329, 101 S.Ct. 2789, 2794, 69 L.Ed.2d 672 (1981). See also Morissette v. United States, 342 U.S. 246, 263, 72 S.Ct. 240, 249, 96 L.Ed. 288 (1952).
“Burglary” has a common law meaning: “the breaking and entering of the dwelling house of another in the nighttime with the intent to сommit a felony.” W. LaFave & A. Scott, Jr., Criminal Law 792 (2d ed. 1986). Modern statutes setting out offenses denominated as burglary may or may not possess the common law elements of burglary. As such, burglary does not have an established “modern” meaning. Moreover, no language in the enhancement statute dictates a meaning other than the common law meaning. See United States v. Headspeth, 852 F.2d 753, 757-58 (4th Cir.1988).
The Eighth Circuit‘s interpretation of thе statute produces an anomalous result, demonstrated by a comparison to Headspeth. In Headspeth, the court considered the application of section 924(e) to a defendant with two convictions for robbery and a third conviction, there in question, for the crime of “storehouse breaking,” under Maryland law. Conduct amounting to storehouse breaking in Maryland (breaking into a storehouse in dаy or night with intent to commit a felony or theft of property of the value of $300 or more) would be at least second degree burglary in Missouri.1 Compare id. at 756 (quoting Md.Ann.Code art. 27, § 32 (1971)), with majority op. at 626-27. Headspeth concluded that storehouse breaking did not constitute burglary under the enhancement provision and
The majority, however, subjects Taylor to the enhanced penalty because the State labeled his conduct burglary. Following the majority‘s analysis to its logical conclusion, a traffic offense of wrongful parking, i.e., the taking of someone else‘s privilege of using a parking space, if labeled burglary by a state, could be used to enhance a sentence under section 924.
I do not believe the application of a federal sentence enhancement рrovision should turn on the differing labels given to similar conduct by the various states. Such application treats similarly situated persons differently for the purpose of a federally imposed sentence. I find it unlikely Congress would have intended such a result. Cf. U.S.Sent.Comm.Sent. Guidelines at 2 (Oct. 1987) (Congress sought uniformity in sentencing by narrowing the wide disparity in sentences imposed by different federal courts for similar criminal conduct by similar offenders.) Unfortunately, neither the majority nor Portwood gives consideration to section 924‘s legislative history. Headspeth‘s analysis of the legislative history is instructive and dispositive. The opinion by Circuit Judge Phillips of the Fourth Circuit stated:
The government argues, however, that the legislative history and purpose of the § 924(e) sentence enhancement provision demonstrate that Congress intended the term burglary to have a more expansive dеfinition than obtained at common law. We disagree.
At one point, § 924(e) did indeed contain a definition of burglary which would encompass Maryland‘s storehouse breaking offense. As originally enacted, § 924(e)‘s sentence enhancement provision was triggered only by previous convictions for either “robbery” or “burglary.” Section 924(e)(2)(B) then specifically defined “burglary” as “any crime рunishable by a term of imprisonment exceeding one year and consisting of entering or remaining surreptitiously within a building that is the property of another with intent to engage in conduct constituting a Federal or State offense.” This definition of burglary, which was considerably broader than its common law counterpart, would of course cover storehouse breaking, as that offense is defined in Maryland.
But this broad statutory definition of burglary was extremely short-lived. Two days after § 924(e) was enacted—and several months before it became effective—Congress began to consider expanding the list of predicate offenses that would trigger it. See Armed Career Criminal Legislation: Hearing on H.R. 4639 and H.R. 4768 before the Subcomm. on Crime of the House Comm. on the Judiciary, 99th Cong., 2d Sess. 44 (May 21, 1986) [hеreinafter Hearing]. At the ensuing hearings, there was a general consensus that the specific predicate offenses of “robbery” and “burglary,” together with their respective definitions, should be replaced with the more general terms “serious drug offense” and “violent felony.” See H.R.Rep. No. 849, 99th Cong., 2d Sess. 3 (1986). There was considerable disagreement, though, about how to define the term “violent felony.”
One proposed amendment, introduced by Representative Wyden of Oregon, favored a broad definition which would include crimes against both person and property:
(A) an offense that has as an element the use, attempted use, or threatened use of physical force against the person or property of another; or
(B) any felony which, by its nаture, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.
H.R. 4639, 99th Cong., 2d Sess. (1986) (emphasis added). This proposal drew a flurry of criticism, for the inclusion of property crimes was thought to be an unwarranted extension of federal criminal jurisdiction which would both encroach upon state sovereignty and overload the federal prison system. See, e.g., Hearing at 11 (statement of Rep. Hughes).
A second proposal, introduced by Representatives Hughes and McCollum, would have defined the term “violent felony” much more narrowly as “any State
or Federal felony that has as an element the use, attempted use, or threatened use of physical force against the person of another.” H.R. 4768, 99th Cong., 2d Sess. (1986) (emphasis added). This definition would have excluded burglary as a predicate offense, because the actual or threatened use of force against the person is not an element of that offense, either at common law or under the original § 924(e)(2)(B). See Hearing at 26 (statement of Rep. Hughes) (indicating that the exclusion оf burglary was deliberate). The Hughes/McCollum proposal was roundly criticized for its failure to include burglary, arson, and other violent crimes against property which, though they did not have the actual or threatened use of force against the person as an element, nonetheless posed a severe inherent danger to human life. See, e.g., Hearing at 9 (statement of Rеp. Wyden); id. at 23-24 (statement of James Knapp, Deputy Ass‘t Attorney General, Crim. Div., U.S. Dept. of Justice).
The amendment that was ultimately passed, and now appears as 18 U.S.C. § 924(e)(2)(B), was a compromise of sorts. It defined the term “violent felony” as:
any crime punishable by imprisonment for a term exceeding one year that—
(i) has as an element the use, attempted use, or threatened usе of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.
Pub.L. No. 99-570, 100 Stat. 3207 (1986) (emphasis added). The § 924(e)(2)(B)(ii) catch-all, which permits certain felonies against property to serve as the basis for sentence enhancement, was designed to satisfy the proponents of H.R. 4639, while the limitation of that provision to crimes which present a serious risk of injury to the person was a concession to those who favored H.R. 4768.
Though the amended statute lists burglary as a predicate offense, it specifically deletes the broad definition of that term which had appeared in the original version of the statute. This omission, viewed in light of the efforts to remove burglary altogether from the list of predicate offenses, suggests that Congress intended to revert to the narrow common law definition of burglary in the amended statute. The common law definition is, to be sure, more consistent with the amended statute‘s focus on conduct which poses a serious potential risk of injury to the persоn. Absent more persuasive evidence that Congress intended the term “burglary” in amended § 924(e)(2)(B) to mean something else, we are reluctant to depart from the usual presumption that Congress intended the term to be given its common law meaning. Accordingly, we hold that the term “burglary,” as used in § 924(e)(2)(B)(ii), means the breaking and entering of the dwelling house of another, in the nighttime, with the intent to commit a felony therein. So defined, the term “burglary” does not encompass storehouse breaking, as that offense is defined under Maryland law.
Headspeth, 852 F.2d at 757-58 (footnote omitted).
For these reasons, I would hold that Missouri‘s second degree burglary is not “burglary” under section 924(e)(2)(B)(ii). Additionally, Missouri‘s second degree burglary does not fall within the statutory phrase of section 924(e) “or otherwise involves conduct that presents a serious risk of physical injury to another.” That issue was also addressed in Headspeth.
Nor do we believe, as the government suggests, that the crime of storehouse breaking set forth in
Headspeth, 852 F.2d at 758-59.
Missouri law, by definition, distinguishes burglaries which are potentially violent and those not showing violence or threats of violence. Burglary in the first degree encompasses entry into a building when armed or when the burglar causes or threatens physical injury to a person not a participant in the crime, or where a person other than a participant is present in the building.
Thus, the conviction for second degree burglary under Missouri law, rеlating as it does to entry into a structure without an occupant, poses no threat of harm to persons.
The comment in the majority opinion at 627, quoting Portwood, 857 F.2d at 1224, that any conduct which may be a burglary under any state law, regardless of the details, “presents the type of potential threat to society that Congress sought to control by the enactment of § 924(e)” does not accord with the legislative history previously quoted in this оpinion.
Moreover, it seems perfectly clear that the language of the statutory provision here in question, underlined in the footnote,2 relates to crimes other than burglary (under common law), arson, or extortion which may present “a serious potential risk of physical injury to another.”
I add a final comment. Institutionally, a panel of this court must follow the rule of law laid down in a prior panel opinion. Only the en banc court can overrule a published panel opinion. Nevertheless, neither this panel nor this writer need uncritically accept a prior panel opinion which may be flawed. I suggest the rule of this case and Portwood in deciding that every burglary defined under state law qualifies as a “violent felony” pursuant to